LOUIS BADUINI VS. LAND USE BOARD OF INDEPENDENCE TOWNSHIP (L-0334-15, WARREN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 31, 2018
• Docket: A-2487-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2487-16T2

LOUIS BADUINI and JOEL SCHNETZER,

Plaintiffs-Appellants,

v.

LAND USE BOARD OF INDEPENDENCE TOWNSHIP, ROE'S ISLAND, LLC and AMY S. GREENE ENVIRONMENTAL CONSULTANTS, INC.,

Defendants-Respondents. ____________________________________

Argued May 15, 2018 – Decided July 31, 2018

Before Judges Fasciale, Sumners and Natali.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0334-15.

Lawrence P. Cohen argued the cause for appellants (Lavery, Selvaggi, Abromitis & Cohen, PC, attorneys; Lawrence P. Cohen, of counsel and on the briefs; William H. Pandos, on the briefs).

Thomas J. Trautner, Jr., argued the cause for respondents Roe's Island, LLC and Amy S. Greene Environmental Consultants, Inc. (Chiesa, Shahinian & Giantomasi, PC, attorneys; Thomas J. Trautner, Jr. and Lauren R. Tardanico, on the brief).

Eric M. Bernstein argued the cause for respondent Land Use Board of Independence Township (Eric M. Bernstein & Associates, LLC, attorneys, joins in the brief of respondents Roe's Island, LLC and Amy S. Green Environmental Consultants, Inc.).

PER CURIAM

Plaintiffs Louis Baduini and Joel Schnetzer appeal from a Law

Division order dismissing their action in lieu of prerogative

writs to invalidate the decision by Independence Township Land Use

Board (Board) that the wetlands mitigation project (the project)

proposed by defendants Roes Island, LLC, and Amy S. Greene

Environmental Consultants, Inc. (Amy S. Greene) (collectively

defendants) is permitted in an agricultural residential zone (AR

zone). We affirm.

Roes Island is the owner of an eighteen-acre tract of land

(the property) located in Independence Township that is part of a

larger parcel of approximately fifty-one acres, of which parts are

located in Liberty Township. Amy S. Greene, a member and affiliate

of Roes Island, is an environmental consulting firm with an

expertise in wetlands restoration and enhancement.

Public Service Electric & Gas Company (PSE&G), seeking to

fulfill to its state-mandated obligations to undergo wetlands

mitigation to create or enhance existing wetlands as compensation

2 A-2487-16T2 for its disturbance of wetlands in the other areas of the state,

entered into an agreement with Roes Island to perform wetlands

mitigation responsibilities on behalf of PSE&G at the property.

At one time, the property may have been considered wetlands, but

it had been drained and converted for agricultural use some time

ago. Under the project, wetlands would be restored by plowing;

planting trees in close proximity to existing streams and ditches;

allowing a return to its natural state of forested wetlands with

permanent stabilization of the area with native grasses,

wildflowers, trees and shrubs; installation of a temporary deer

exclusion fence to protect plants; the maintenance of bee hives

for the commercial sale of honey; and the filling of secondary

ditches on the property. A portion of the property is permanently

conserved through a deed restriction, and there will be no

permanent structures built thereon.

Based upon the advice of the Independence Township Land Use

Officer, Amy S. Greene submitted an application on behalf of Roes

Island to the Board seeking an interpretation of the township's

land use ordinance Section 255-98 (the ordinance): to determine

if the project was within ordinance's definition of "customary

agricultural and horticultural uses" in an AR zone. The ordinance

prescribes the following principle uses in an AR zone:

(1) One-family dwellings.

3 A-2487-16T2 (2) Customary agricultural and horticultural uses, including farms, greenhouses and nurseries, and including such shelter as may be required for seasonal farm labor. Customary agricultural and horticultural uses shall include the raising, hauling or sale of feed or bedding customarily used in a farming operation and the retail sale of farm products.

(3) Soil processing and soil removal, provided that the provisions of the Earth Removal Ordinance of the Township of Independence[] are complied with.

[Independence Twp., N.J., Land Dev. Ordinance §255-98(A) (1979).]

In the alternative, the application sought a use variance for the

project.

During the course of four diverse hearing dates over a five-

month period, defendants provided detailed testimony – regarding

the scope and benefits of the project – by Amy S. Greene's

principal, a wetlands scientist; a professional planner; an expert

in the field of wetlands science, wetland hydrology, botany, and

forestry; a licensed civil engineer; and a wildlife biology expert.

At the Board's request, the Warren County Mosquito Commission

Superintendent testified regarding the commission's thoughts

concerning the best methods for the way the project can reduce

mosquitoes. In addition, Schnetzer, a self-proclaimed potential

4 A-2487-16T2 landowner in Independence Township, appeared before the Board.1

He objected to the application; commenting on his belief that

farmland would be lost due to a deed restriction on the property,

and questioning defendants' witnesses about how the project was

akin to agriculture and how the project would be monitored.

After all witnesses testified, the Board went into executive

session upon the advice of its attorney, to discuss potential

litigation and attorney-client privilege under the Open Public

Meetings Act (OPMA), N.J.S.A. 10:4-12(b). Upon return to public

session, the Board determined that the project constituted an

agricultural use as set forth in the ordinance. The Board Chairman

further noted that wetland mitigation or wetland enhancement would

not in and of itself be considered "agriculture" in order to

support a favorable interpretation for the project but as an

element of other agricultural uses proposed as part of the overall

use of the property; therefore, the enhancement of wetlands and

any associated mitigation is permitted. Other "use" and "accessory

use" are defined in Section 255-3 as:

USE: The specific purpose for which a parcel of land or a building or a portion of a building is designed, arranged, intended, occupied or maintained.

1 No parties addressed his standing to file suit, so we do not as well.

5 A-2487-16T2 USE, ACCESSORY: A use which is customarily associated with and subordinate to the principal use of a lot or building and which is located on the same lot therewith.

The Board approved a resolution, which memorialized its

interpretation of the ordinance approving the project.

Plaintiffs filed an action in lieu of prerogative writs to

rescind the Board's action. The Law Division judge disagreed and

entered an order dismissing the action with prejudice. In his

eighteen-page statement of reasons in which he detailed the

project's scope, the witnesses' testimony, the applicable law, and

the Board's decision, the judge determined that - even though it

may not fit in the narrow categories of "traditional" agricultural

use - defendants' project was permitted in the AR zone because its

uses were agricultural in nature and consistent with the intent

of the ordinance. The judge held that the "enumerated agricultural

activities in the ordinance are not meant to represent an

exhaustive list, but are meant to illustrate as evidence of the

phrase 'included but not limited to.'" The judge reasoned that

"wetlands are a condition of the property and not an independent

use of land for which a property owner would need approvals."

Thus, he found that the project's plan, which includes soil

conservation, forest management and beekeeping, is agricultural

in nature.

6 A-2487-16T2 In their appeal brief, plaintiffs argue:

POINT I

THE TRIAL COURT ERRED BY FAILING TO CONSIDER WHETHER THE INDEPENDENCE TOWNSHIP LAND USE BOARD'S DECISION WAS NULL AND VOID BEFORE CONSIDERING THE SUBSTANTIVE BASIS OF THE BOARD'S DECISION.

POINT II

THE TRIAL COURT ERRED BY FAILING TO CONSIDER WHETHER THE LAND USE BOARD VIOLATED THE OPEN PUBLIC MEETINGS ACT.

POINT III

THE TRIAL COURT LACKED SUBJECT-MATTER JURISDICTION TO CONSIDER THE SUBSTANTIVE BASIS OF THE INDEPENDENCE TOWNSHIP LAND USE BOARD'S DECISION BECAUSE THE BOARD ACTED IN VIOLATION OF THE OPEN PUBLIC MEETINGS ACT.

POINT IV

THE TRIAL COURT ERRED BY FAILING TO CONSIDER AN AMENDED INDEPENDENCE TOWNSHIP ZONING ORDINANCE WHICH EXPLICITLY EXCLUDES "WETLANDS REMEDIATION AND/OR MITIGATION" AS A PERMITTED USE.

POINT V

THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANTS' PROPOSED ACTIVITIES ARE PERMITTED IN THE INDEPENDENCE TOWNSHIP AGRICULTURAL- RESIDENTIAL ZONE.

In their reply brief, plaintiffs argue:

THE PROPOSED USES AS INTERPRETED BY THE LAND USE BOARD AND THE TRIAL COURT BELOW AS BEING

7 A-2487-16T2 CONSISTENT WITH THE PERMITTED USES IN THE ZONE AS "CUSTOMARY AGRICULTURAL AND HORTICULTURAL USES" IS INCORRECT.

THE ISSUE AS TO WHETHER OR NOT THE PROPOSED USES BY DEFENDANT [ROES] ISLAND ARE PERMITTED IN THE INDEPENDENCE TOWNSHIP AR-ZONE IS NOT MOOTED BY THE DOCTRINE OF PREEMPTION.

THE LAND USE BOARD'S VIOLATION OF THE OPEN PUBLIC MEETINGS ACT WAS NOT CURED BY "DELIBERATIONS" IN OPEN SESSION.

We first address plaintiffs' argument in Point IV that the

judge erred by failing to consider Independence Township

ordinance, Section 255-3 – amended on December 1, 2015, after

defendants' application was filed on October 31, 2014 – that

explicitly excludes "[w]etlands remediation and/or mitigation"

from the definition of agriculture. Since the project involves

wetlands remediation, plaintiffs contend the amendment requires a

finding that the project was not an agriculture use permitted in

the AR zone and that the Board's decision should be rescinded.

We pass on the merits of this argument because plaintiffs

failed to raise this argument before Judge Pursel entered his

order,2 as we decline to consider arguments raised for the first

2 January 3, 2017.

8 A-2487-16T2 time on appeal that do not "go to the jurisdiction of the trial

court or concern matters of great public interest." Zaman v.

Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson,

200 N.J. 1, 20 (2009)). Moreover, under N.J.S.A. 40:55D-10.5,3

the "time-of-application" rule, the court must consider the law

in effect when an application to the Board was made. Since Section

255-3 was amended after defendants' interpretation application,

its current iteration should not be considered to determine whether

the project is permissible under the ordinance.

In addition, we find no merit to plaintiffs' argument that

defendants' application for an interpretation does not meet the

statutory definition of an "application for development" under

N.J.S.A. 40:55D-3. Although plaintiffs' application sought an

interpretation of the ordinance, it also requested a use variance

to implement the project in the event the Board determined the

project did not involve uses consistent with the ordinance.

Consequently, the post-application amendments to Section 255-3 do

not invalidate the Board's decision.

3 N.J.S.A. 40:55D-10.5 provides, "[n]otwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development."

9 A-2487-16T2 Next, we next address plaintiffs' arguments in Point II of

their initial brief and Point III of their reply brief that the

Board erred by going into executive session and preventing the

public the right "to be present at all meetings of public bodies,

and to witness in full detail all phases of the deliberation,

policy formulation, and decision making of public bodies,"

N.J.S.A. 10:4-7, and that the court erred in not considering

whether the Board's executive session violated the OPMA. Although

the court did not address plaintiffs' OPMA claim, we will address

the claim under Rule 2:10-5, which provides that "[t]he appellate

court may exercise such original jurisdiction as is necessary to

the complete determination of any matter on review."

We see no merit to the claim. The record reveals that the

Board entered into an executive session upon its attorney correctly

citing N.J.S.A. 10:4-12(b)(7), which provides that a public body

can meet in an executive session to discuss "matters falling within

the attorney-client privilege" and "pending or anticipated

litigation." When the Board came out of its executive session,

it deliberated publicly so the general public was not deprived of

the opportunity to witness the process.

Plaintiffs' remaining arguments essentially challenge the

merits of the court's findings that the project was permissible

under the ordinance. They contend the court failed to explain how

10 A-2487-16T2 defendants' project qualifies as "agricultural activity" since

defendants do not propose to sell, lease or personally use any

plants or other products that may come from the site. Plaintiffs

maintain that defendants' activities, consisting of forest

management, wood cuttings, soil conservation, and beekeeping, do

not constitute as agricultural use. They contend the forest

management plan does not involve the production of any timber or

wood products. They likewise argue that a soil conservation plan

does not qualify as agricultural use unless there are payments,

for instance under a governmental program for soil conservation.

They also contend the wood cuttings were not going to produce any

revenue, but were intended to be used at some time in the future

to establish more forested wetlands. Additionally, they assert

beekeeping is such a minor part of the project that it should not

be considered to justify as a use under the project.

As a threshold matter, when reviewing a trial court's

determination of the validity of an action taken by a land use

board, we are bound by the same standard as the trial court. N.Y.

SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J.

Super. 319, 331 (App. Div. 2004). Thus, we give substantial

deference to findings of fact, Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 362 (2011), but review de novo those

"interpretation[s] of the law and the legal consequences that flow

11 A-2487-16T2 from established facts," Manalapan Realty, L.P. v. Twp. Comm.,

140 N.J. 366, 378 (1995). A trial court's decision that is based

on its interpretation of the municipality's ordinances, the

interpretation is primarily a legal issue, Wyzykowski v. Rizas,

132 N.J. 509, 518 (1993), which "is not entitled to any special

deference," Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of

Twp. of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008)

(citation omitted). We have long recognized that "because of

their peculiar knowledge of local conditions," municipal land use

boards "must be allowed wide latitude in their delegated

discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597

(2005); accord Booth v. Bd. of Adjustment of Rockaway Twp., 50

N.J. 302, 306 (1967).

Mindful of these principles, we see no reason to disturb the

judge's finding that the project is consistent with agricultural

uses and accessory uses, which are allowed in an AR zone under the

ordinance. Thus, we reject plaintiffs' arguments and affirm

substantially for the reasons stated by the judge in his written

statement of reasons issued with his order.

Affirmed.

12 A-2487-16T2